In re Claim of Torres

Ct Cl

January 25, 2013

In the Matter of the Claims of Carmen Rosa Torres as Administrator of the goods, chattels and credits which were of BRIANA AMARYLLISS OJEDA, CARMEN ROSA TORRES, individually and MICHAEL OJEDA, individually, Plaintiff(s),v.The City of New York, NEW YORK CITY POLICE DEPARTMENT, NEW YORK CITY POLICE COMMISSIONER RAYMOND KELLY, in his individual and official capacity and NEW YORK CITY POLICE OFFICER ALFONSO MENDEZ, in his individual capacity, Defendant(s).

19542/2011

Plaintiffs were represented by Bonita Zelman, Esq., New Hyde Park, NY; Defendant, the City of New York, was represented by Anshel David, Esq., Corporation Counsel, New York, NY.

Sylvia G. Ash, J.

Papers

Numbered

Notice of Motion and Affidavit Annexed.

1, 2

Opposing Affidavit/Affirmation...

Reply Affidavit/Affirmations.

3, 4

Other Papers (oral argument transcript)

5

After oral argument and upon the foregoing papers, Defendants THE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, NEW YORK CITY POLICE COMMISSIONER RAYMOND KELLY and NEW YORK CITY POLICE OFFICER ALFONSO MENDEZ (hereinafter collectively the "City") move for an order, pursuant to CPLR §3211 dismissing or bifurcating Plaintiffs' Monell claims, dismissing Police Commissioner Raymond Kelly ("Commissioner Kelly") from the case, as well as for various other relief explained below. Plaintiffs oppose and cross-move for leave to amend their complaint and to compel certain items of discovery.

Background

This action stems from an incident that occurred on August 27, 2010, resulting in the death of 11-year-old, Briana Ojeda. According to the complaint, Plaintiff Carmen Torres was attempting to drive her daughter Briana to Long Island College Hospital because she was suffering from an asthma attack. Plaintiffs claim that, in Ms. Torres's desperate attempt to get Briana to the hospital, she drove down Henry Street in the wrong direction, nicked another vehicle, and was subsequently stopped by Defendant Police Officer Alfonso Mendez ("Mendez"). The complaint further alleges that Ms. Torres begged Mendez for emergency assistance to help transport her daughter to the hospital but that he refused to call an ambulance or render any aid or assistance when Briana fainted. Plaintiffs allege that when Ms. Torres asked Mendez to perform cardiopulmonary resuscitation ("CPR"), he stated that he "didn't do CPR" and that he "didn't know CPR." Plaintiffs also allege that Mendez hampered and impeded Ms. Torres in driving Briana to the hospital by following her in his patrol car and "bleeping" his siren. Briana died later that day at the hospital.

On or about August 26, 2011, Plaintiffs filed a summons and complaint alleging nine causes of action for violation of their civil rights under 42 USC §1983 and under state law for intentional infliction of emotional distress, negligent infliction of emotional distress, negligence, wrongful death, conspiracy and prima facie tort. Plaintiffs also assert a state law claim for negligent hiring and retention against the municipality, the New York City Police Department ("NYPD") and Commissioner Kelly. Plaintiffs seek both compensatory and punitive damages and request that the City be compelled to implement a program of training and certifying NYPD officers in CPR and first aid.

In its motion, the City requests the following relief:

(1) To dismiss Plaintiffs' Monell claims on the basis that Plaintiffs failed to plead sufficient facts to state a claim and further failed to allege a legally cognizable constitutional claim because there is no constitutional right to emergency medical assistance; in the alternative, the City requests that the Monell claims be bifurcated in the interest of efficiency.

(2) To dismiss Commissioner Kelly from the case since the municipality is the real party in interest. The City contends that Plaintiffs' allegations against Commissioner Kelly of "implementing policies" and "failing to identify and punish P.O. Mendez" and "negligent hiring and retention" are actions taken in Commissioner Kelly's official capacity, and not by him as an individual.

(3) To dismiss Plaintiffs' claims for negligent hiring and retention because Mendez was acting within the scope of his employment.

(4) To dismiss Plaintiffs' claims for punitive damages because the State and its political subdivisions are not subject to punitive damages.

(5) To dismiss Plaintiffs' claims of negligence for failing to identify and discipline Mendez and for Mendez's failure to make log entries, prepare an aided report and make proper radio communications because these acts constitute post-incident events that did not cause actual harm to Plaintiffs.

(6) To quash Plaintiffs' Notice to Depose Commissioner Kelly because he is a high-ranking agency official who does not possess unique personal knowledge of the subject incident.

(7) To dismiss Plaintiffs' claim for injunctive relief directing that the NYPD implement a program of mandatory training for provision of CPR and first aid because it is procedurally defective and without any substantive legal basis.

(8) To dismiss Plaintiffs' claims for intentional infliction of emotional distress because this cause of action cannot be brought against a governmental entity.

(9) To dismiss the claim for negligent infliction of emotional distress by Plaintiff Michael Ojeda (Briana's father) because he was not at the scene of the incident and therefore, not in the "zone of danger" pursuant to Bovsun v Sanperi, 61 N.Y.2d 219, 231 [Ct App 1984]).

(9) To dismiss Plaintiffs' claim of prima facie tort because such a claim cannot be brought against a governmental entity as a matter of public policy, and further, because Plaintiffs cannot prove special damages, a necessary element of the claim.

(10) To dismiss Plaintiffs' claim of conspiracy because Plaintiffs have failed to plead the facts underlying the alleged conspiracy with sufficient particularity to withstand a motion to dismiss.

In opposition, Plaintiffs contend their Monell allegations are sufficient to withstand a motion to dismiss. They further argue that Commissioner Kelly should remain a defendant because he is not relieved of liability for his own actions or omissions, such as his failure to properly train and instruct his subordinates in CPR. They further argue that Commissioner Kelly's deposition is necessary because he possesses firsthand knowledge as to why the NYPD refuses to train their police officers in CPR and because he is personally involved in the matter as demonstrated by statements he made at a press conference.

With regards to their claim for injunctive relief, Plaintiffs contend that 42 USC §1983 ...

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